Viacom isn't giving up in its battle against YouTube. On Tuesday, it told an …

The entertainment giant Viacom is asking the United States Court of Appeals for the Second Circuit to overturn last year's ruling that Google is not liable for copyright-infringing Viacom content uploaded to its YouTube site. Speaking Tuesday before a three-judge panel, a Viacom lawyer argued that the lower court erred in holding that YouTube was eligible for the safe harbor provisions of the Digital Millennium Copyright Act.

When Congress was crafting the DMCA in 1998, ISPs successfully lobbied for a provision granting immunity to online service providers for the copyright-infringing activities of their users. As long as service providers follow certain guidelines, including promptly removing content when notified by copyright holders, service providers are shielded from liability. The immunity provision helped lay the foundation for the modern Web.

Google argues that because it follows the DMCA's takedown procedure, it isn't responsible for the videos its users choose to upload. A federal judge sided with Google last year.

But Viacom points to two factors its says make Google ineligible for the safe harbor. The DMCA not only requires ISPs who want the safe harbor to act when notified of specific infringement; it also requires them to act if becomes aware of "facts or circumstances from which infringing activity is apparent." Viacom argues that infringing content was so rampant on YouTube—especially during the company's early days—that the site fails this test. The DMCA also excludes from the safe harbor firms that "receive a financial benefit directly attributable to the infringing activity." Viacom argues that YouTube's advertising allows it to profit from infringing ads.

Viacom lawyer Paul Smith reiterated those points in Tuesday's oral argument. He alleged that infringing content was a key part of YouTube's early strategy for building the site's audience. And he pointed out that Google could be doing more to block infringing content. For example, he pointed out that YouTube has had little difficulty keeping pornographic content off the site, and suggested that Google shouldn't have any trouble filtering out infringing content as well.

But Google counsel Andrew Shapiro countered that the law doesn't require YouTube to adopt the latest filtering technologies; it merely requires the site to remove infringing material when notified of its existence. And he also argued that filtering infringing content is more difficult than filtering pornography. For example, he pointed out that Viacom employees had themselves uploaded clips of some Viacom content, and that Viacom had then had difficulty distinguishing between these authorized clips and unauthorized ones. If Viacom can't accurately identify infringing copies of its own content, he said, it's not reasonable to expect Google to do so.

Also participating in the arguments was Charles Sims, representing a British soccer league. He argued that YouTube had profited from pirated soccer clips.

Viacom is swimming against the current. In 2009, a judge ruled that the video site Veoh qualifies for the safe harbor. And in August, a different judge found that the music locker service MP3tunes was also eligible despite having a search engine that made it easy to find infringing songs and place them in a user's locker. It's possible these decisions will be reversed on appeal, but so far websites claiming the safe harbor have had an impressive winning streak.

38 Reader Comments

Pity there is no mention of how Viacom gave Google 100,000 take down notices in one day hoping to "catch" google but instead Google took down those 100,000 "infringements" in a day (or two)... not 100% sure as I am drawing from memory and I think I read that article right here on Ars...

I'm not sure what "directly attributable" means, but I'm having a tough time buying that ad revenue that is driven only in part by infringing content would qualify. Unless you're arguing that nobody would visit YouTube if not for infringing content, it seems...questionable.

As for the porn versus infringement argument, that's just silly. As mentioned, seperating porn from not-porn is a simple matter of what standards you set, whereas determining copyright ownership (and infringement versus fair use) is a crapshoot at best. Anybody can report porn. Only the copyright holder can verify that a work is infringing.

Good luck, Viacom. You'll need it.

All of that said, I'd not shed a tear if there was a judgment levied against YouTube/Google for the actions and attitudes present in the early days of the site; that crap was pretty flagrant back then. I think they may have still been covered, legally, and I doubt Viacom would win...but it's not like it'd be a huge injustice if they did. YouTube clearly profited, knowingly, off copyright infringement.

I'm not sure what "directly attributable" means, but I'm having a tough time buying that ad revenue that is driven only in part by infringing content would qualify. Unless you're arguing that nobody would visit YouTube if not for infringing content, it seems...questionable.

As for the porn versus infringement argument, that's just silly. As mentioned, seperating porn from not-porn is a simple matter of what standards you set, whereas determining copyright ownership (and infringement versus fair use) is a crapshoot at best. Anybody can report porn. Only the copyright holder can verify that a work is infringing.

Good luck, Viacom. You'll need it.

Let's not forget that Youtube today is one of the most overreacting sites on the internet with regard to responding to takedown requests. They're notorious for their "take down first, ask questions....maybe." skittish approach to takedown requests received, so much so that it's actually irritating the users now. There's no way anyone can say that Youtube isn't plenty active with regard to removing copyrighted content on demand, especially not Viacom.

I'm not aware of any dot-org online service providers. AFAIK, EVERY online service provider profits from infringing content, because they profit from ALL content. Viacom's argument would totally short-circuit that provision of the DMCA.

Didn't you hear? Established media conglomerates can use user-generated content however they want, not the other way around. When your video shows up on Comedy Central or MTV or Spike you should be happy. You should be paying them for the privilege. Without the blessing of companies like Viacom, your user-generated content is worthless. It's only bad when you threaten the revenue stream of our dear benefactors at Viacom or NBC-Comcast-GE.

I'm not aware of any dot-org online service providers. AFAIK, EVERY online service provider profits from infringing content, because they profit from ALL content. Viacom's argument would totally short-circuit that provision of the DMCA.

Hey Viacom, that's how capitalism works. When Wal-Mart sells eggs, they make a profit off the egg farmer. When the restaurant sells an egg breakfast, that restaurant makes a profit off those Wal-Mart eggs. Viacom, are you aware that you're making the same argument that Karl Marx once made, that only the producers of a manufactured item deserve to profit off the sale of that item? And do you realize that if you really believed what you were saying, you'd turn over all profits that YOU make to the artists who work in your creativity sweatshops?

Hey Viacom, that's how capitalism works. When Wal-Mart sells eggs, they make a profit off the egg farmer. When the restaurant sells an egg breakfast, that restaurant makes a profit off those Wal-Mart eggs. Viacom, are you aware that you're making the same argument that Karl Marx once made, that only the producers of a manufactured item deserve to profit off the sale of that item? And do you realize that if you really believed what you were saying, you'd turn over all profits that YOU make to the artists who work in your creativity sweatshops?

To continue with that thought... Comcast/DirecTV and the like profit off of the content they use from Viacom as well.

People will report porn of their own volition. Who but the copyright holder cares about piracy?

Leave cares... you see nipples "or more" you know it's porn.How do you know whats pirated and whats not?

If the public were that smart the MAFIAA would have been out of business a lonnnnnnng time back.

I so wish they would die. I am so sick of seeing movies with 200 million dollar budgets or TV shows that cost 2 to 4 million an eposide. I demand fan fiction and cat videos made for the love of it instead of the greedy bastards that want to make a profit from products people actually want.

Regarding advertising, seems to me that if they were advertising the infringing content itself (ie "here is a great song download it now!!") is very different from advertising a legitimate product that happens to appear on a random search that results in infringing content.

The advertising isn't directly attributable to the infringing content unless it is sellign that infringing content.

Also, the same Viacom that complained about Google taking down Viacom media because some folks in legal didn't know Viacom owner entities legitimately uploaded said media for promotional purposes.

A Viacom VP even complained about the "fucking assholes" at YouTube—because the company "enforced its repeat-infringer policy concerning a Viacom marketing account that had received multiple take-down notices from Viacom's legal department." The lulz, they are here in spades.

Or the one that was upset because they wanted to buy Youtube?

Case in point: "I WANT TO OWN YOUTUBE. I think it's critical, and if it goes to a competitor.....!!!!!!!!!!!!!!!" That was from MTV Networks head Judy McGrath.Viacom CEO Tom Freston wrote, "If we get UTube… I wanna run it." McGrath responded, "You'll have to kill me to get to it first."Freston on his own mergers & acquisitions team: "No M&A team in recent history could have a poorer record than us. We are a joke... and our failed judgments and heavy handed behavior have cost us HUGELY."

I looked up the word douchebag in the dictionary and it showed Viacom. Some day I hope that the bubble bursts for the greedy corporate @$$holes like Viacom and the execs will have to get a real job and learn what real work is.

I wondered how they got off on this. They run ads on illegaly uploaded videos.......... What difference is that than the pirate bay? Who doesn't go to youtube for illegaly uploaded music? I have subscription accounts and I still use youtube sometimes.

I wondered how they got off on this. They run ads on illegaly uploaded videos.......... What difference is that than the pirate bay? Who doesn't go to youtube for illegaly uploaded music? I have subscription accounts and I still use youtube sometimes.

Location location location. Google is US based. Pirate Bay was (is) based in Sweden.

Viacom's argument is retarded. They're using the past to criminalize Google - "when piracy was running rampant in Youtube's early days". Yeah, that was before Google absorbed Youtube. They sure got some stupid counsels working for them.

I wondered how they got off on this. They run ads on illegaly uploaded videos.......... What difference is that than the pirate bay? Who doesn't go to youtube for illegaly uploaded music? I have subscription accounts and I still use youtube sometimes.

It's not that hard to understand. Are your primary business model BUILT on infringing content (Pirate Bay) or is the infringing content merely an accidental side-effect of the use of user-driven-content (YouTube).

Of course it also matters that laws are different in the US and in Sweden, but in a nut-shell that's the difference.

If you allow such a broad definition of "profiting" as Viacom (and you) are peddling here, then EVERYONE are profiting from infringing. ISPs profit from their users paying for high-speed lines, and every site in the world that allows user-generated content and have ads (which means everything but Wikipedia) will also be "profiting" from infringing activity. That is clearly absurd, so you either have to disallow profits that are obtained indirectly from mattering or you have to start judging the ratio of infringing vs non-infringing and the intention of the site-owners, which is what the Swedish court did with Pirate Bay.

Personally I favor the first option - I don't see how any "profits" that are only indirectly obtained could be used to condemn a site - if they ask a subscription to access "the good stuff" or similar - that's profiting directly.

No, we must bring this conflict to the courts, where nobody really wins except the lawyers.

Actually, court affirmation in the strength of DMCA safe harbor provisions is a win for everyone but the media conglomerates. So I'm really enjoying watching Viacom shoot themselves (and other media corporations) in the foot on this.

Should Viacom win, however slim that chance may be, we can turn their ruling against them. If they ever use a user generated video in a show on their network, what is to stop us from suing them for using our content without permission? After all, they are ineligible for safe harbor protections since they profit from advertising revenue. Of course that would mean we need to copyright everything and spam the copyright offices.

Yeah that there is the rub. An ISP or hosting company, unless litterally doing it non-profit style, is profiting from any content they host, transmit, etc in SOME way. I think the standard needs to be that they aren't eligible for the safe harbor provision if they know the content is infringing and do nothing about it. That is a damned hard standard to prove, but frankly it should be.

As the host simply complying with a take down notice within a resonable period of time should be sufficient. End of story.

Yeah, the provision is if the profit was "directly attributable" to the infringement. It wasn't it was ads on the page that load with every page whether there is infringement, no infringement, or even any video.

Should Viacom win, however slim that chance may be, we can turn their ruling against them. If they ever use a user generated video in a show on their network, what is to stop us from suing them for using our content without permission? After all, they are ineligible for safe harbor protections since they profit from advertising revenue. Of course that would mean we need to copyright everything and spam the copyright offices.

Good news. Content is automatically granted copyright the moment it's created. Heh. EVERY SINGLE TIME Viacom uses User generated content without permission, it's infringing copyright. Some smart lawyer should get on this.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.